Citation Nr: 9919580
Decision Date: 07/16/99 Archive Date: 07/21/99
DOCKET NO. 96-06 284 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a low
back disorder, and, if so, whether service connection is
warranted.
REPRESENTATION
Appellant represented by: James W. Stanley, Jr.,
Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
INTRODUCTION
The veteran served on active duty in the United States (U.S.)
Air Force from February 1948 to December 1964. He also
served in the U.S. Army Reserves and National Guard from
December 1981 to June 1989.
This case arises on appeal from a May 1995 rating decision
issued by the No. Little Rock, Arkansas, Department of
Veterans Affairs (VA) Regional Office (RO). The RO declined
to reopen previously denied claims seeking entitlement to
service connection for low back and shoulder disorders and
found that a claim for service connection for an anxiety
disorder was not well grounded. The Board upheld the RO's
decision in February 1997. The veteran appealed the Board's
decision to the United States Court of Appeals for Veterans
Claims (formerly the U.S. Court of Veterans Appeals) (Court).
In March 1998, counsel for the veteran and VA filed a Joint
Motion to Vacate the Board Decision, in Part, to Remand the
Case, and to Stay Further Proceedings. The parties moved the
Court to vacate that portion of the February 7, 1997, Board
decision that determined that new and material evidence had
not been submitted to reopen a claim of entitlement to
service connection for a low back disorder and to remand that
issue for further consideration. The parties also moved to
affirm the Board's decision with respect to the other two
issues addressed in the February 1997 decision. An Order of
the Court dated in March 1998 granted the motion in part and
vacated that part of the Board's decision of February 1997
that denied the application to reopen the claim of
entitlement to service connection for the low back disorder,
remanding the claim for further consideration. The appeal as
to the remaining issues was dismissed.
The Board remanded the case for additional development in
August 1998, and now proceeds with its review of the appeal.
FINDINGS OF FACT
1. In April 1994, the Board denied a petition to reopen a
claim of entitlement to service connection for a low back
disorder.
2. Evidence has been presented since the April 1994 Board
decision that is so significant that it must be considered in
order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. The April 1994 Board decision is final. 38 U.S.C.A.
§ 7104(a) (West 1991); 38 C.F.R. § 20.1100 (1998).
2. New and material evidence has been submitted to reopen a
claim of entitlement to service connection for a low back
disorder, and the claim is reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
The veteran's service medical records disclose that he was
provided "A.P.C." for muscular pain in the lumbar region in
February 1952. There is no further evidence of treatment for
low back symptomatology until September 1964, when he stated
that he suffered a back injury while lifting boxes at the
commissary. There was 2+ muscle spasm in the lumbar area on
the left side. The examiner prescribed Robaxin. In October
1964, the veteran denied any arthritic complaints related to
the back. He complained only of left shoulder pain since
1957 and right knee symptomatology. There were no complaints
pertaining to the lumbar spine on separation examination in
October 1964. Examination of the spine was normal.
On Report of Medical History in May 1981 (Reserve enlistment
examination), the veteran denied any recurrent low back pain.
Physical examination was negative.
Upon examination by Samuel S. Haley, D.C. in September 1981,
the veteran complained of low back pain and pain of the legs
and feet. He stated that he was involved in an automobile
accident in February 1981 when his car was rear ended;
however, he reported no injuries at that time. Dr. Haley
diagnosed "Traumatic insult and inflammatory reaction to
paravertebral soft tissues with nerve root involvement
especially traced to the subluxation complex of the lumbo-
sacral articulation" and "Acute traumatic subluxation of
L3, L4, L5, and a marked subluxation complex of the lumbo-
pelvic spinal segments accompanied by lumbar nerve
radiculitis, strain of the lumbar, lumbo-sacral and
sacroilliac [sic] articulations" which resulted in
"myodysneuria of the lower back paravertebral tissues."
Dr. Haley further stated that it was "well documented that
this type of injury will cause a degree of post-traumatic
pathology. [The veteran] may well continue to have flare-ups
of pain in his low back and legs, and this will be
proportional to his activities."
During annual training on August 8, 1982, the veteran
complained of a back injury with pain for two days after
lifting an item. The examiner's impression was lumbosacral
strain.
VA outpatient records dated in November 1982 show that the
veteran complained of low back pain with radiation to both
legs. X-rays revealed severe narrowing at L5-S1. Pertinent
diagnoses included degenerative disc disease of the low back.
The veteran testified at a personal hearing at the RO in
February 1983. He stated that he fell 12 to 14 feet from a
pole in 1957 or 1958 while stationed in Germany. He
reportedly felt something snap in his lower back and went to
the hospital. He claimed that his back condition had existed
since that time.
On VA examination in March 1983, the veteran reported three
back injuries during active service. He fell 16 feet from a
pole 1958 or 1959 in Germany. On another occasion while
stationed at Scott Air Force Base, he fell from a step
ladder. X-rays revealed mild spurring and lipping at L3, L4
and L5, a transitional lumbosacral segment with lumbarization
of the first sacral segment, and some slight sclerosis on the
right side at the region where the pseudoarticulation is.
Pertinent diagnoses included early degenerative joint disease
of the lumbar spine, characterized by spurring and lipping;
some facet joint changes at the L4-L5 level; and transitional
lumbosacral segment at the L5-S1 level.
The veteran was examined by E. W. Hayes, Sr., D.C. in July
1984. X-rays showed hyperlordotic lumbar curve; osteophyte
formation at L3, L4 and L5; disc degeneration at L2, L3, L5
and S1; a rotational malpositioned L3 vertebra; an old,
healed fracture at the superior aspect of the left sacrum;
and articular roughening in both acetabular regions. Dr.
Hayes stated that the veteran's conditions were "chronic in
nature, and no doubt, stem from old injuries."
The veteran's original claim of service connection for a
disability of the low back was denied by the Board in October
1984. In that decision, the Board concluded that the
evidence did not establish a chronic disability as the result
of inservice treatment for low back complaints.
The veteran sought to reopen his claim in July 1989. He
stated that he injured his low back in July 1988 while
stationed at Fort Hood, Texas. He was reportedly required to
lift over 100 pounds. He provided additional evidence in
support of his claim, as follows.
Reserve medical records dated on June 12, 1988, indicated
that the veteran was treated for arthritis of the neck.
However, on Report of Medical History in September 1988, the
veteran stated that during two weeks of training at Fort
Hood, Texas, he developed extreme pain in his low back.
Magnetic resonance imaging (MRI) of the lumbar spine was
conducted in March 1989 at Betton Clinic. It showed mild
degeneration and bulging of the L2-L3 and L3-L4 discs.
On Report of Medical History in July 1989 (Reserve retirement
examination), the veteran gave a history of recurrent back
pain. Pertinent diagnoses included possible herniated
nucleus pulposus, L4-L5, degenerative disc disease of the low
back.
Reserve medical records dated in August 1989 revealed
complaints of a long history of low back pain with recent
pain down both legs, as well as a history of degenerative
joint disease of the lumbar spine. The examiner diagnosed
degenerative joint disease of the lumbar spine.
VA outpatient treatment records dated in October 1989 show
that the veteran was diagnosed as having low back pain. He
sought treatment for low back pain and pain down the legs in
May 1990. He gave a history of a fall in 1957. X-rays
revealed degenerative changes of the lumbar spine and
sacralization of the left transverse process of L5.
Pertinent diagnoses included chronic low back pain and
degenerative joint disease of the spine. In April 1991, he
was diagnosed as having chronic low back pain and right lower
extremity pain.
On VA examination in July 1990, the veteran was diagnosed as
having residuals of an injury to the lumbar spine. He was
reexamined by VA in July 1991. The examiner diagnosed
degenerative joint disease of the lumbar spine.
The veteran testified at a personal hearing at the RO in
January 1992. He stated that he was treated for lumbar
problems in February 1952. He also fell from a pole while
stationed in Germany in 1957 and heard something pop. He
went to the hospital and was given A.P.C. and told to use
massage and hot packs. He again fell in October 1964. He
stated that his back problem worsened during Reserve
training.
The veteran's claim was again denied by the Board in April
1994, on the basis that the veteran had not presented new and
material evidence to reopen his claim of entitlement to
service connection for a low back disorder based on his
active military service and on the basis that the claimed
disabilities were not shown to have been incurred during or
aggravated by periods of active duty for training or inactive
duty training while a member of the Army Reserves and
National Guard.
The veteran sought to reopen his claim of entitlement to
service connection for a low back disorder in September 1994.
Evidence received since the April 1994 Board denial of
entitlement to service connection for a disability of the low
back includes the following:
Employer health records dated from 1978 through 1988
reflected that the veteran denied ever having or presently
having backache in February 1978, with normal examination of
the spine. A notation dated January 28, 1981, showed that
the veteran complained of a sore back after having been hit
from behind in his car when he was going home the previous
evening. He reported that he had sought emergency room
treatment. The veteran denied ever having or presently
having back trouble February 1983, with normal examination of
the spine. He was treated for a low back strain injury
sustained while lifting a printer in February 1988. The
examiner diagnosed paraspinal strain. The veteran was
provided a back brace in March 1988 and complained of
continued pain in June 1988. A report of x-rays taken of his
lumber spine in June 1988 showed a congenital anomaly with
five mobile vertebral segments in the lumbar area, one of
which is partially sacralized on the left, and some
degenerative changes in the lower lumbar spine and apophyseal
joints. In November 1988, the veteran denied ever having or
currently having any back trouble and examination of the
spine was normal.
The veteran's testified at a personal hearing at the RO in
April 1995. He stated that he fell 17 to 18 feet from a pole
during active service in 1957. He immediately went to the
Third Field Hospital in Ramstein Army Depot for treatment of
lower back pain. He developed back pain over the years and
felt that it was attributable to this injury. He reportedly
re-injured his back while lifting an item during training at
Fort Hood, Texas, in 1982.
Also of record is a statement dated in April 1995 signed by
G.C. Evans, M.D., which indicated the veteran's reported
history of sustaining a fall in 1957 and being diagnosed with
lumbar strain was the type of medical disorder that is
clinically significant for its propensity to recur and cause
chronic residuals and therefore, it was Dr. Evans' opinion
that the veteran's current low back problems were related to
the "initiating trauma" reportedly sustained in service.
Dr. Evans originally stated that the "initiating injury"
was the aforementioned 1957 fall, but he amended this date to
reflect the year of 1964. According to the veteran's
attorney, this opinion was based upon review of the veteran's
medical records.
The veteran underwent VA examination in May 1995. On
orthopedic evaluation, he stated that his original injury was
in 1957 when he fell, and he re-injured himself while lifting
in the Reserves. X-rays revealed mild degenerative changes
of the facet joints L4 and L5 with associated first degree
spondylolisthesis of L4 over L5 and slight disc space
narrowing at L4-L5. The examiner diagnosed residuals of a
back injury.
VA outpatient treatment records dated from October 1991 to
July 1995 showed continued occasional treatment for
complaints of chronic low back pain.
A report of a psychological evaluation conducted in August
1995 by D. A. Stevens, Ph.D. reflected the veteran's
complaints of chronic low pain as a result of sustaining a
low back injury in 1957 secondary to falling about 18 feet
from a telephone pole and as a result of re-injuring his back
in 1988 secondary to lifting a transmitter. In addition, he
reported a medical history significant for arthritis of his
back.
II. Legal analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303(a) (1998). It requires that the
veteran have a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained during service. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1998); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992).
Service connection may be established for a current
disability on the basis of a "presumption" under the law
that certain chronic diseases manifesting themselves to a
certain degree within a certain time after service must have
had their onset in service. 38 U.S.C.A. §§ 1110, 1112 (West
1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.304, 3.307,
3.309(a) (1998). Service connection for arthritis may be
established based on a legal "presumption" by showing that
it manifested itself to a degree of 10 percent or more within
one year from the date of separation from service.
38 U.S.C.A. § 1112 (West 1991 & Supp. 1998); 38 C.F.R.
§§ 3.307, 3.309 (1998).
Service connection for a disability may also be established
based on aggravation of disease or injury which preexisted
service when there is an increase in disability during
service unless the increase is due to the natural progress of
the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R.
§ 3.306(a) (1998). Establishing service connection for a
disability based on aggravation requires (1) evidence
sufficient to show that a disease or injury preexisted
service; (2) evidence showing an increase in disability
during service sufficient to raise a presumption of
aggravation of the disability; and (3) an absence of clear
and unmistakable evidence to rebut the presumption of
aggravation which may include evidence showing that the
increase in severity was due to the natural progress of the
disability. 38 C.F.R. § 3.306(b) (1998). Concerning item
(1), a disorder may be shown to have preexisted service if it
is noted at entrance into service or where clear and
unmistakable evidence rebuts a legal presumption of sound
condition at entrance for disorders not noted at entrance.
History provided by the veteran of the pre-service existence
of conditions recorded at the time of the entrance
examination does not, in itself, constitute a notation of a
preexisting condition. 38 C.F.R. § 3.304(b)(1) (1998);
Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v.
Brown, 7 Vet. App. 238, 246 (1995).
Decisions of the Board are final. 38 U.S.C.A. § 7104(a)
(West Supp. 1998); 38 C.F.R. § 20.1100 (1998). Where, as
here, a final Board decision existed on a claim, i.e., in
April 1994, that claim may not be thereafter reopened and
allowed, and a claim based upon the same factual basis may
not be considered by the Board. 38 U.S.C.A. § 7104(b). The
exception is that, if new and material evidence is presented
or secured with respect to the claim, the Secretary shall
reopen the claim and review the former disposition. See 38
U.S.C.A. §§ 5108, 7104. The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) has specifically held that
the Board may not consider a previously and finally
disallowed claim unless new and material evidence is
presented, and that before the Board may reopen such a claim,
it must so find. See Barnett v. Brown, 83 F. 3d 1380, 1383
(Fed. Cir. 1996).
In the case of Hodge v. West, 155 F. 3d 1356 (Fed. Cir.
1998), the Federal Circuit held that in Colvin v. Derwinski,
1 Vet. App. 171, 174 (1991), the Court impermissibly ignored
the definition of "material evidence" adopted by VA under
38 C.F.R. § 3.156(a) as a reasonable interpretation of an
otherwise ambiguous statutory term (found under 38 U.S.C.
§ 5108) and, without sufficient justification or explanation,
rewrote the statute to incorporate the definition of
materiality from an altogether different government benefits
scheme. Pursuant to the holding in Hodge, the legal hurdle
adopted in Colvin and related cases, see e.g. Sklar v. Brown,
5 Vet. App. 140, 145 (1993), Robinette v. Brown, 8 Vet. App.
69 (1995) and Evans v. Brown, 9 Vet. App. 273 (1996), that
required reopening of claim on the basis of "a reasonable
possibility that the new evidence, when viewed in the context
of all the evidence, both new and old, would change the
outcome" of the case was declared invalid. Thus, the
Federal Circuit held in Hodge that the legal standard that
remains valid was that contemplated under 38 C.F.R.
§ 3.156(a) that requires that in order for new evidence to be
material, the new evidence should "bear[ ] directly and
substantially upon the specific matter under
consideration . . . [and must be] so significant that it must
be considered in order to fairly decide the merits of the
claim."
In Elkins v. West, 12 Vet. App. 209 (1999), the Court held
that the two-step process set out in Manio, for reopening
claims became a three-step process under the Federal
Circuit's holding in Hodge, and is in effect a less
restrictive standard based on the language of 38 C.F.R.
3.156(a). The Court held in Elkins that now the Secretary
must first determine whether new and material evidence has
been presented under 38 C.F.R. § 3.156(a); second, if new and
material evidence has been presented, immediately upon
reopening the claim, the Secretary must determine whether,
based upon all the evidence and presuming its credibility,
the claim as reopened is well grounded pursuant to 38 U.S.C.
§ 5107(a); and third, if the claim is well grounded, the
Secretary may evaluate the merits after ensuring the duty to
assist under 38 U.S.C. § 5107(b) has been fulfilled.
The Court further added that the Federal Circuit in Hodge
effectively "decoupled" the relationship between
determinations of well-groundedness and of new and material
evidence by overruling the reasonable-possibility-of-a-
change-in-outcome prong established by Colvin. There is no
duty to assist in the absence of a well-grounded claim. Epps
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied,
sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also
Winters v. West, No. 97-2180 (U.S. Vet. App. Feb 17, 1999).
Accordingly, the Board will consider whether new and material
evidence has been submitted since the final April 1994 Board
decision in accord with the holding in Hodge, supra. No
prejudice to the veteran is exercised by the Board's
appellate disposition herein for two reasons: (1) the Board's
review of the claim under the more flexible Hodge standard
accords the appellant a less stringent "new and material"
evidence threshold to overcome, and, (2) the Board resolves
this issue in the veteran's favor. Cf. Bernard v. Brown,
4 Vet. App. 384 (1993); see also Fossie v. West, No. 96-1695
(U.S. Vet. App. Oct. 30, 1998).
The Board finds that new and material evidence has been
submitted to reopen the claim for service connection for a
low back disorder. The April 1995 statement from G.C. Evans,
M.D. is both new and material. It was not previously of
record and suggests that the veteran's low back disorder had
its onset during active service. Dr. Evans' statement is
presumed credible for the purpose of reopening the veteran's
claim since it is within his competence as a medical doctor
to render such an opinion. See Justus v. Principi, 3 Vet.
App. 510, 513 (1992). The opinion also bears directly and
substantially upon the pertinent issue regarding this claim,
i.e., a connection between the veteran's current low back
disorder and his active service. This medical opinion is so
significant that it must be considered in order to fairly
decide the merits of the claim.
Therefore, because the additional evidence is new and
material in light of the applicable laws and regulations, the
Board finds that the claim of entitlement to service
connection for a low back disorder is reopened.
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for a low back disorder is
reopened.
REMAND
Having reopened the veteran's claim for service connection
for a low back disorder, the Board finds that further
development is necessary for a fair decision in this case.
Further verification of the veteran's service dates is
warranted. The RO attempted this development in accordance
with the August 1998 Board remand but did not receive an
adequate response. Thus, the RO should again contact the
NPRC and the Department of the Army U.S. Army Reserve
Personnel Center and request verification of the complete
dates of the veteran's service, as well as the type of
service during each period of enlistment, i.e., whether it
was active duty, active duty for training (ACDUTRA) or
inactive duty training (INACDUTRA). The Board is
particularly interested in any periods of ACDUTRA or
INACDUTRA in 1982 and 1988. If the information requested is
not available from those sources, the RO is to contact any
other indicated official sources for the information.
Additional development should also be accomplished to procure
any additional service medical records corresponding to the
veteran's service in the U.S. Air Force from February 1948 to
December 1964. In a form received at the RO in December
1998, the NPRC requested that the RO complete items 16
through 19 to allow for a search of other sources. There is
no evidence of record indicating that the RO responded.
Particularly as the request of Landstuhl Regional Medical
Center for the veteran's treatment records from the Third
Field Hospital at Ramstein Army Depot was unsuccessful, those
records should be requested as well through the National
Personnel Records Center. If further detail is required from
the veteran in order to complete items 16 through 19 on the
VA Form 30-7101, request that the veteran provide that
information.
The RO should also obtain and associate with the claims
folder the veteran's emergency room medical records
associated with his treatment for back complaints following
an automobile accident in January 1981. The veteran reported
in an employment medical record on January 28, 1981, that he
had been given emergency room treatment the previous evening.
He should provide the name of the hospital and its address so
that the record of the treatment may be obtained.
Finally, on remand the veteran should be afforded a VA
examination in order to ascertain the date of onset and
etiology of any current low back disorder. See Horowitz v.
Brown, 5 Vet. App. 217 (1993) (where there is a reasonable
possibility that a current condition is related to or is a
residual of a condition experienced in service, the Board
should seek a medical opinion as to whether the claimant's
current disabilities are in any way related to or a residual
of those experienced in service.); Wilson v. Derwinski, 2
Vet. App. 16 (1991) (the development of facts pertinent to
the veteran's claim includes conducting an examination and
asking the examiner to express an opinion as to whether the
veteran's current disability is related to any disease or
disability treated in service).
Therefore, this case is REMANDED for the following:
1. Contact the NPRC or any other
indicated agency (e.g., Department of the
Army U.S. Army Reserve Personnel Center)
and request verification of the complete
dates of the veteran's service, as well as
the type of service during each period of
service, i.e., whether it was active duty,
active duty for training or inactive duty
training. All periods of active duty for
training or inactive duty training should
be separately noted. The Board is
particularly interested in any periods of
ACDUTRA or INACDUTRA in 1982 and 1988. It
appears that the veteran had some training
from August 2 to August 16, 1982, and from
June 4 to June 18, 1988.
Also, complete items 16 through 19 as
requested by the NPRC in December 1998 to
allow for a search of other sources for
copies of the veteran's service medical
records, to include clinical records, from
all periods of duty, including
documentation of any relevant treatment
that the veteran may have received for a
low back disorder in 1957 and 1988. If
further details are necessary in order to
complete the requested items, ask the
veteran to provide the necessary
information.
2. Ask the veteran to provide the name of
the hospital at which he sought emergency
room treatment in January 1981 and to
provide a release for the records of that
treatment. Request and associate with the
claims folder the veteran's emergency room
medical records dated in January 1981.
If requests for these records are not
successful, tell the veteran and his
attorney so that he will have an
opportunity to obtain and submit the
records himself, in keeping with his
responsibility to submit evidence in
support of his claim. 38 CFR § 3.159(c).
3. Afford the veteran a VA examination
by an orthopedic specialist. The claims
folder and a copy of this remand are to
be made available to the examiner prior
to the examination, and the examiner is
asked to indicate that he or she has
reviewed the claims folder, including the
service medical records. All tests
deemed necessary by the examiner are to
be performed.
The examiner is asked to provide accurate
diagnoses of all current low back
disorders the veteran has and determine
the date of onset and etiology of all
such disorders.
Based on the findings upon examination
and a review of all the evidence in the
claims file, the examiner should provide
answers to the following:
a. Is it at least as likely as not that
any current low back disorder is related
to any injury or disease experienced
during the veteran's active service from
February 1948 to December 1964, including
any low back injuries/symptomatology in
1952, 1957 and/or 1964?
b. If it is clear and unmistakable that
any current low back disorder had its
onset between December 1964 and December
1981, was there an increase in the
disability beyond its natural progress
during any period of ACDUTRA or INACDUTRA,
i.e., from August 2, to August 16, 1982,
and/or from June 4, to June 18, 1988? The
Board is particularly interested in the
treatment rendered on August 8, 1982.
The examiner must provide a comprehensive
report including complete rationales for
all opinions and conclusions reached,
citing the objective medical findings
leading to the conclusions. If further
consultation with other specialists is
determined to be warranted in order to
respond to the foregoing questions, such
consultations are to be accomplished prior
to completion of the report.
4. Review the claims folder and ensure
that all of the foregoing development
actions have been conducted and completed
in full. If any development is
incomplete, appropriate corrective action
is to be implemented. Specific attention
is directed to the examination report. If
the requested examination does not include
fully detailed descriptions of pathology
and all test reports, special studies or
adequate responses to the specific
opinions requested, the report must be
returned for corrective action. 38 C.F.R.
§ 4.2 (1998); see also Stegall v. West, 11
Vet. App. 268 (1998).
5. Readjudicate the veteran's claim, with
application of all appropriate laws and
regulations, and any additional information
obtained as a result of this remand. If any
benefit sought on appeal remains denied,
provide the veteran and his attorney a
supplemental statement of the case, which
includes consideration of all medical
evidence received since the February 1999
supplemental statement of the case. Allow an
appropriate period of time for response.
Then, the claims folder should be returned to the Board for
further appellate consideration. The veteran need take no
action until he is so informed. He is, however, free to
submit additional evidence or argument to the RO on remand.
Quarles v. Derwinski, 3 Vet. App. 129 (1992). The purpose of
this REMAND is to obtain additional information and to comply
with all due process considerations.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (Historical and Statutory Notes)
(West Supp. 1998). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals